Butts v. State, 4 Div. 528

• Decision Date: 19 April 1977
• Docket Number: 4 Div. 528
• Citation: 346 So.2d 497
• Parties: Donnie BUTTS v. STATE.
• Court: Alabama Court of Criminal Appeals

Page 497

346 So.2d 497

Donnie BUTTS v. STATE.

4 Div. 528.

Court of Criminal Appeals of Alabama.

April 19, 1977.

Rehearing Denied May 24, 1977.

Scott Q. Kirkland, Alton & Leavell, Montgomery, for appellant.

William J. Baxley, Atty. Gen., and Ellis D. Hanan, Asst. Atty. Gen., for the State.

HARRIS, Judge.

Appellant was indicted for the possession of marijuana. At arraignment, with counsel present, he pleaded not guilty. When his case was called for trial appellant and his counsel made known to the Court that appellant desired to withdraw his not guilty plea and plead guilty to the charge laid in the indictment. The Court accepted the guilty plea and sentenced appellant to four years imprisonment in the penitentiary. His application for probation was denied.

No contention is made that appellant's guilty plea was not knowingly, voluntarily and intelligently made and that he had competent counsel representing him at the time his guilty plea was accepted by the trial court. Sentence was imposed on March 9, 1976. Appellant did not question the legality of the indictment by demurrer prior to pleading guilty and he did not raise any constitutional issues with respect to the statute under which he was indicted.

Appellant filed a petition for writ of habeas corpus on October 27, 1976, in which he made the following contentions:

"That he was convicted under a statute, to-wit Title 22, Section 258(47)(a) which is void for vagueness and overbroad and thus in violation of the 14th Amendment of the Constitution of the United States, in that it:

(a) mentions 'any person who possesses' a controlled substance, including marijuana, when speaking of a felony and mentions 'any person who possesses any marijuana for his personal use only is guilty of a misdemeanor' so that any person charged thereunder for 'possession of marijuana' would be incapable of knowing whether he is charged with possession for his own personal use or possession not for his own personal use, and thus said statute is unconstitutionally and impermissibly vague.

(b) sweeps too broadly by failing to distinguish between possession which might or might not be for someone's own personal use when speaking to the felony, thus enabling the conviction for a felony of a person who might have the marijuana for his own personal use, and thus the statute is overbroad and unconstitutional.

(c) lacks any adequate standard or criteria for determining whether possession is for personal use or not, and thus is void for vagueness and unconstitutional.

(d) has not been so construed or narrowed by the Alabama courts to save it from a determination of vagueness and overbreadth in violation of the 14th Amendment to the United States Constitution."

Succinctly stated, appellant contends that the penalty provisions of the Alabama Uniform Controlled Substances Act, Title 22, Section 258(47), Code of Alabama 1940, violate both the Equal Protection Clause and the Due Process Clause of the Constitution of the United States as respects the possession of marihuana (marijuana). He claims that an indictment under this section is deficient and unconstitutional in that it fails to apprise appellant whether he is charged with a felony or a misdemeanor.

In the following cases this Court has held that an indictment charging possession of marihuana, a felony, embraces the lesser offense of...